Categories
Capital Gains Tax Uncategorized

Entrepreneurs’ Relief

Is the clock ticking ?

Speculation is always rife before a Budget as to what the Chancellor’s speech might contain. This year, one of the front runners is the potential abolition of entrepreneurs’ relief. Indeed, the Sunday Times reported on 1 March 2020 that the new Chancellor, Rishi Sunak, will scrap entrepreneurs’ relief to ‘fund a spending spree in the North of England’.

If this prediction does turn out to be true, what does it mean for those who would currently qualify for the relief?

To recap, entrepreneurs’ relief provides a favourable 10% rate of capital gains tax on qualifying disposals up to the £10 million lifetime limit provided that the qualifying conditions have been met for the qualifying period. The relief is available on qualifying disposal of business assets or on shares in a personal company. Changes announced in the 2018 Budget made the qualifying conditions more stringent, including an increase in the period for which the qualifying conditions must be met from 12 months to two years for disposals on or after 6 April 2019.

If indeed entrepreneurs’ relief is abolished, an unknown is whether this will take immediate effect from Budget day, from the end of the 2019/20 tax year or from another date. Assuming a worst case scenario and an immediate abolition from Budget day, should a sale already be in progress and it is possible to accelerate it to before 11 March, this may be prudent, particularly when the tax at stake is high, Likewise, where the qualifying conditions have been met by a personal company, consideration may be given to the disposal of shares by this date, possibly into a trust. However, as time is very short, professional advice should be taken as a matter of urgency to allow for contingency planning.

It must be borne in mind that any action will only affect any gain made to date. Any future gains will not benefit should the relief be withdrawn. Additionally, of course, in order to take advantage of entrepreneurs’ relief it is necessary to trigger a capital gain which will result in a tax charge.

It may, however, be the case, that the Chancellor adopts a less extreme approach and reforms the relief rather than abolishing it. This could take the form of yet more stringent qualifying conditions, a reduced lifetime allowance or an increase in the tax rate.

While all will not be revealed until the Budget, it is likely that the window of opportunity to benefit from the relief in its current, generous form is limited. It is advisable to review options ahead of 11 March and take protective action where possible.

Categories
Capital Gains Tax

Entrepreneurs Relief under threat?

All three of the main Political Parties included a commitment in their pre 2019 General Election manifestos to either abolish or “review and reform” entrepreneurs’ relief (ER). This sounds like the death knell for ER to apply to the proceeds from company liquidation.

There may be opportunities to take advantage of Entrepreneurs’ relief now to protect the position should the availability of relief be compromised.

However, before any action is taken it would be prudent to ensure that relief would in fact be due and that all the conditions have been in place for the required 24 months prior to the disposal. In particular :

Unincorporated Businesses

For an unincorporated business who owned what proportion of the business, and for which periods? For ER to apply there is a 5% ownership threshold to meet for company and partnership shares, although this is subject to variations for retiring partners and diluted shareholdings.

Periods of low activity

The Potter case, examined whether a period of very low activity with no actual sales could be considered to be trading. The FTT decided the minimal activity was trading, and crucially there was no investment activity in that period, so the Potters’ ER claim was upheld.

Where the trade wound down it may have changed location or nature in the last few years. In that case it can be difficult to define exactly when the trade ceased. This problem was examined in the Jeremy Rice case.

Property LettingTrading?

Letting out property is nearly always regarded as an investment activity rather than trading, so where the business has been letting property you need to look for other activities which could be trading. The recent case of Stephen & Lynne Reneaux illustrates this problem.

The couple jointly owned two commercial units which were used for Stephen’s business until 2003. For the next 10 years the income from letting the units was reported as rental income inequal shares on the couple’s tax returns. The units were sold in 2013, and the individuals both claimed entrepreneurs’ relief on their share of the gain.

The FTT looked for substantial activity associated with the letting of the units which could be regarded as a trade, but concluded that the activities required to generate income from the units did not amount to a trade. The ER claims were rejected.

Categories
Capital Gains Tax Uncategorized

Entrepreneurs’ relief changes

FA 2019, Schedule 16 has introduced four changes to entrepreneurs’ relief (ER). The new conditions for an individual’s shareholding in their personal company to qualify for ER took effect from 28 October 2018. The three other changes to ER take effect for disposals made after 5 April 2019.

Qualification period

For disposals after 5 April 2019 all the qualifying conditions for ER must be in place for at least 24 months to the date of disposal, or to the date the business ceases to trade.

Look through incorporation

Where a business incorporates the qualification clock for the ER conditions is set back to zero on the issue of the shares, or on date the on which the company starts trading, whichever is the later. Where the shareholders receive an offer for the company shortly after incorporation, they will be denied ER as they won’t have built up full qualification period of share ownership.

For disposals after 5 April 2019 the qualification period for ER can look through the incorporation and include the period during which the unincorporated business was owned by the current shareholders. This look-through only applies if the shares were acquired wholly or partly in exchange for the transfer of the business as a going concern, and all the assets of the business, other than cash, must have been transferred to the company. These are the conditions under which incorporation relief applies.

If it is planned to incorporate the business, make sure that incorporation relief does apply as an insurance policy against a quick sale of the company.

Dilution of shareholding

Where equity investment is raised from outside investors, it can dilute the holdings of existing shareholders to below 5% of ordinary share capital, stripping away their rights to ER.

For new share issues made from 6 April 2019, the existing shareholders can preserve their ER by making two elections . The first election creates a deemed sale and reacquisition of their shares, crystallising the gain on which ER can be claimed, and the second election defers the CGT due until their shares are sold. These elections must be made by the first anniversary of 31 January following the tax year in which the additional shares are issued.

Categories
Capital Gains Tax Tax Avoidance Uncategorized

What tax is paid on winding up a company?

In 2016 a targeted anti-avoidance rule (TAAR) was introduced to prevent individuals from winding-up their close company, taking out the retained cash at capital gains tax rates and then continuing the same business in another vehicle.

In HMRC Spotlight 47 HMRC declare that schemes designed to step around this TAAR, which involve selling the company to a third party rather than winding it up, don’t work, so the TAAR would apply with the result that the withdrawn cash would be subject to tax at income tax rates.

HMRC’s view is misleading to say the least.

The TAAR only applies if a company is wound-up, it can not apply if the company is sold to a third party. If a business owner decides to sell their cash-rich company to a third party in order to release the funds, and within two years (the period defined in the TAAR), starts a similar trade or activity, the income tax charge imposed by the TAAR cannot apply. It is disingenuous for HMRC to imply that it could.

What’s more HMRC say that the general anti-abuse rule (GAAR) would apply in these circumstances if the TAAR doesn’t apply. This is also nonsense, as it was not the intention of Parliament for the TAAR to apply on the sale of a company to a third party.

Clearly if there is a non commercial arrangement with a third party undertaken with the primary aim of sidestepping the TAAR then it is to be expected that the transaction will come under scrutiny.  

HMRC is trying to frighten people away from using tax avoidance schemes, which is a good thing, but it needs to use this power in a responsible way. 

You can read Spotlight 47 here

Categories
Capital Gains Tax

CGT Rollover Relief

A little knowledge is a dangerous thing, especially in tax. The circumstances of a transaction need to fit precisely within the parameters of the relief, or tax will be payable as is demonstrated by the cases of CF Day v HMRC and KW Day v HMRC

Mr and Mrs Day sold a plot of land for £200,000, and reinvested the proceeds in a cottage which they planned to let out as holiday accommodation. Mr Day did not take professional advice, but instead did some online research, which he didn’t print off or bookmark, so he couldn’t refer back to it.

From his research, Day believed that CGT rollover relief would be due, as he was selling a business asset (land he farmed) and buying another business asset (a Furnished Holiday Lettings property). In fact business asset rollover relief (TCGA 1992, s 152) was not available to Mr Day as the cottage was subsequently let on 6-month tenancies and not as short term furnished holiday accommodation, so it didn’t qualify as a business asset.

Mrs Day was the joint owner of the land, but she didn’t farm the land, as the farming business was carried on by Mr Day alone as a sole-trader. Thus, for Mrs Day, neither the asset disposed of (farm land), nor the asset acquired (the cottage), qualified as business assets.

Having reached their erroneous conclusions about CGT rollover relief, the couple thought that no tax would be payable on the sale of the land, so they didn’t report the transaction on their tax returns. HMRC investigated and raised assessments for the CGT due, plus penalties for careless errors on the tax returns, and interest due on late paid tax.

Amazingly, HMRC accepted Mr Day’s claim for entrepreneurs’ relief on his share of the gain, which cut his CGT liability by half. Unfortunately, Mrs Day was not eligible to claim entrepreneurs’ relief as she was not farming the land.

Categories
Capital Gains Tax Uncategorized

‘Living’ in a property for PRR purposes

Private residence relief provides relief from capital gains tax arising on the disposal of a property which has been the taxpayer’s only or main residence.

In the recent tribunal decision of Hezi Yechiel TC06829, consideration was given as to whether, for the purposes of the legislation, Mr Yechiel occupied the property in question, 6 Beaufort Drive, as his only or main residence.

In determining whether the property was occupied as a main residence, the Tribunal considered the ordinary English meaning of ‘reside’ which is ‘to dwell permanently or for a considerable period of time, to have one’s usual or settled abode, to live in a particular place’.

In determining whether a property qualifies as a `residence’, the nature, quality, length and circumstance of the occupation are taken into account. Weight is also given to the taxpayer’s intention – in this case to have a ‘bolt hole’ to escape the stress of his divorce and for it to be a long-term home.

The tribunal considered what Mr Yechiel did in the house. It had a working kitchen and bedroom and (the Tribunal presumed) a bathroom. While Mr Yechiel slept there, he did not cook there or do his washing there; when he ate there, it was mainly take-way food. He brought only a bed and a side table for the property. During the period Mr Yechiel spent a significant amount of time at his parents’ house, eating there and doing his laundry there.

The Tribunal dismissed Mr Yechiel’s appeal. They found his occupation lacked sufficient quality of occupation, concluding ‘that to have a quality of residence, the occupation of the house should constitute not only sleeping, but also periods of ‘living’, being cooking, eating a meal sitting down, and generally spending some periods of leisure there.

It is important that clients appreciate the quality of occupation as well as the quantity when seeking to claim private residence relief.

Tribunal decision Hezi Yechiel TC06829

Categories
Capital Gains Tax Uncategorized

Entrepreneurs Relief – Personal Company definition

The government has now tabled an amendment to Paragraph 2 of Schedule 15 of the Finance Bill, which contains the changes to the definition of ‘personal company’ for ER purposes. See the proposed amendment here: 

The amendment will add an alternative test based on the shareholder’s entitlement to proceeds in the event of a sale of the whole company, which can be used instead of the tests based on profits available for distribution and assets on a winding up.

The original tests have been left in to provide certainty to those with straightforward company structures, but the new test will help those who are not able to meet the original test for commercial reasons, and does not rely on the definitions in the Corporation Tax Act 2010.

Categories
Capital Gains Tax Uncategorized

Entrepreneurs’ Relief – Do you qualify ?

Entrepreneurs’ relief (ER) is widely misunderstood by people who don’t read the legislation. For ER to apply to a gain arising from the disposal of shares or securities, the company must be the individual’s personal company for a full 12 months ending with the disposal date, or the date the company ceases to trade (if earlier).

A company is the taxpayer’s personal company if he holds at least 5% of the ordinary share capital and at least 5% of the voting rights exercisable by virtue of that shareholding. This dual condition is relaxed if the shares were acquired by way of qualifying EMI options acquired on or after 6 April 2013.

A further relaxation is proposed where the shareholding is diluted below the 5% threshold as a result of issuing more shares to new investors on or after 6 April 2019. This change in the ER rules will be introduced by FA 2019.

The legal definition of ordinary share capital is: “all of a company’s issued share capital, except fixed dividend shares which have no other rights to share in the company’s profits,”. This definition means that the taxpayer must hold 5% of all the issued share capital (not just 5% of the ordinary shares), while ignoring any shares with a fixed dividend.

When the company has a complex share structure, working out exactly what proportion of the total issued share capital an individual holds can be tricky. HMRC has recently updated its view of ordinary share capital, to include more examples of situations where the position may be finely balanced. It is worth reading through those examples if  shares in a company with a complicated share structure.

The voting rights part of the condition must also be met. In the case of Dieno George the taxpayer did not hold enough voting rights for the full 12 month period to take his voting power up to 5%, and so his claim for entrepreneurs’ relief failed.